Goutam Bhaduri, J.

1. Heard.

2. The present appeal is against the judgment and decree dated 20.12.2019 passed by the 3rd Additional District Judge, Janjgir-Champa, C.G. in Civil Suit No. 20-A/2018, whereby the suit filed by the sisters of the appellant seeking partition in respect of a property held by their brother Premlal and Mother Janki Bai was decreed.

3. Brief facts of the case are that the parties are governed by the Hindu Law of Mitakshara School, holding ancestral property situated at village Sivani, Tehsil Champa. The genealogical tree of the parties are shown here under:-

4. The suit was filed by four sisters namely Laxmin Bai, Nirmala Bai, Ganeshi Bai and Premlata Bai against their brother - Premlal and mother - JankiBai (since deceased). The undisputed facts are that the suit property was recorded in the name of Sukhrunarayan, who had two sons namely Manharan and Dilharan. Dilharan was married to Janki Bai and out of said wedlock, plaintiffs (sisters) and the defendant No. 1 (son) were born. As per parties, a partition took place in between two brothers wherein Manharan got 17.01 acres of land and legal heirs of Dilharan got the property to the extent of 9.98 acres. According to the plaintiffs, thereafter an oral partition took place in between brother, sisters and mother and though the partition took place and the sisters were married and residing at their matrimonial homes, yet on their behalf Premlal was carrying on agriculture over the land befallen to their share and used to share the profit. It is pleaded that all of a sudden, in 2018, parting with the share of proceeds of crop was stopped and dispute started regarding claim of property. Subsequently, suit was filed by four sisters claiming partition and possession of property against their brother namely Premlal and mother namely Jankibai, who died during the pendency of the proceeding.

5. The case of the defendant Premlal was that in the year 1995, when the partition took place in between Manharan and the descendants of Dilharan i.e. the parties to the suit (plaintiffs), all the sisters had relinquished their right. Consequently, the names of only Premlal and mother JankiBai were recorded in respect of agricultural land. It was further stated that by relinquishment of their right in 1995, exclusive names of Premlal & Janki Bai were recorded in the Revenue Records and the suit for partition was filed much after in the year 2018, therefore, plaintiffs claim would be barred under the law of limitation.

6. The learned trial Court after evaluating the facts and evidence decreed the suit in favour of the daughters for partition and separate possession. Being aggrieved by such order, the instant appeal is filed by brother against his sisters.

7. Learned counsel for the appellant would submit that as per the document exhibited it would show that the partition took place in between Manharan and the descendants of Dilharan in the year 1995 and the plaintiffs were ousted from the possession in 1995 itself. Therefore, the suit when was filed in the year 2018 would be barred under Article 110 of the Limitation Act which purports that a person excluded from joint family property would be barred to claim his/her share if it has not been done within a period of 12 years when the exclusion came to the notice of plaintiffs. He would submit that the documents would show that the plaintiffs were in know of the fact that they are not in possession, therefore, despite the fact such plea has not been taken by virtue of Section 3 of the Indian Limitation Act, the Court can very well adjudicate the issue. He would submit that the Revenue Records filed would show that the plaintiffs were not in possession and were out of the possession since 1995. Consequently, the suit would be barred and is liable to be dismissed.

8. Per contra, learned counsel for the respondents would submit that there was no exclusion of the ownership from the subject property and Premlal/appellant - brother was carrying on agriculture on behalf of the sisters and the sisters were co-owners. Consequently, by virtue of the fact that the daughters are co-parceners after the amendment of provisions of Hindu Succession Act, 1956 in the year 2005, their right cannot be extinguished over the property which is a coparcenary one. Learned counsel would further submit that in case of claiming partition, the law of limitation would not apply. In support of his contention, learned counsel placed reliance in the matter of Vidya Devi Alias Vidya Vati (Dead) by LRS. Vs. Prem Prakash and others reported in (1995) 4 SCC 496 [LQ/SC/1995/651] and would submit that the judgment and decree passed by the learned Court below is well merited which do not call for any interference.

9. We have heard learned counsel for the parties and perused the pleading and the evidence available on record.

10. The genealogical tree of the parties which has been reproduced in the foregoing paragraph would show that the property was inherited by Sukhrunarayan which further went to the share of Manharan, Dilharan and their heirs. The daughters have claimed the partition and possession in respect of the suit property.

11. Section 6 of the Hindu Succession Act, 1956 was amended in 2005 wherein the daughters were included to be the co-parceners. The amended Section purports that the daughter of co-parcener shall by birth become a coparcener in her own right in the same manner as the son. This provision was further subject of interpretation by the Supreme Court in the matter of Vineeta Sharma vs. Rakesh Sharma and others reported in (2020) 9 SCC 1 [LQ/SC/2020/597] and the reference was answered as under:-

"(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected out rightly."

12. Reading of the said dictum laid down by the Court would show that the daughters were included to be the co-parceners not from the date of amendment but from the date of their birth, however, the past transactions were saved subject to exception of past transaction and it was the only case of enlargement of the right of the daughters without affecting the right of the other relatives as prevailed earlier.

13. By virtue of amendment to Section 6 of Hindu Succession Act, 1956, when the parties were governed by Mitakshara Sect, the Coparcenary property described therein carries a definite conception and it is a body of individuals having been created by law unlike a joint family which can be constituted by agreement of parties. The facts in this case undoubtedly points out that the daughters having been included as a co-parcener would be the part and parcel of the coparcenary property and will have a status of co-parceners. With respect to devolution of co-parceners, the Supreme Court in the matter of Hardeo Rai vs. Sakuntala Devi and others reported in (2008) 7 SCC 46 (para 19) has reiterated the principles laid down in S.B.I. v. Ghamandi Ram (1969) 2 SCC 33 [LQ/SC/1969/69] which reads as under:

"5. According to Mitakshara School of Hindu Law all the property of Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for joint family members then living and thereafter to be born (see Mitakshara, Chapter I, pp. 1-27). The incidents of coparcenership under the Mitakshara Law are:

first, the lineal male descendants of a person upto the third generation, acquire on birth ownership in the ancestral properties of such person;

secondly, that such descendants can at any time work out their rights by asking for partition;

thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest;

fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common;

fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and

sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except insofar that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter."

14. Therefore, by necessary implication, conclusion of the said judgment while applying the principles, to the facts of this case would show that the daughters would be the co-parceners as the property was not acquired by Dilharan in his individual capacity to attract the devolution under Section 8 of the Hindu Succession Act, 1956.

15. Now further making reference to the evidence, the statement of PW-1 would show that the property was held in joint possession. Though the partition had taken place, the brother was carrying out the agriculture on behalf of sisters. The revenue documents have been placed on record as Ex. P-1 which is also filed by the defendant/brother. The defendant had contended that the oral relinquishment deed was made by the sisters in his favour along with the mother, but no registered relinquishment deed is on record to show the existence of such relinquishment. If the property value is more than a hundred, registration of it would be compulsory as per Section 17 of the Indian Registration Act, 1908 as it creates, declares, assigns and extinguishes a right over a property.

16. The Supreme Court has reiterated such analogy in Yellapu Uma Maheshwari vs. Buddha Jagadheeswararao reported in (2015) 16 SCC 787 [LQ/SC/2015/1380] and held that the document effecting relinquishment of right in respect of immovable property requires compulsory registration. Paras 12 & 13 of the said judgment would be relevant which are quoted below:-

"12. Before we go into the merits of the matter, we deem it appropriate to extract the relevant provisions of the Registration Act, 1908:

12.1 Section 17 of the Registration Act, 1908

"17. Documents of which registration is compulsory. - (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. 16 of 1864, or the Indian Registration Act 1866 (20 of 1866), or the Indian Registration Act 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely:-

(a) Instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property;

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

(f) any decree or order or award or a copy thereof passed by a Civil Court on consent of the defendants or on circumstantial evidence but not on the basis of any instrument which is admissible in evidence under Section 35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed produced by the plaintiff, where such decree or order or award purports or operate to create, declare, assign, limit, extinguish whether in present or in future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property; and

(g) agreement of sale of immovable property of the value of one hundred rupee and upwards:

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

12.2 Section 49 of the Registration Act, 1908

"49. Effect of non-registration of documents required to be registered. - No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt; or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.

13. Section 17(1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered u/s. 17 of the Act."

17. Therefore, the submission of the appellant that the sisters have relinquished their right cannot be appreciated in absence of any registered document.

18. Now further coming to the question of limitation, the defendant/appellant has claimed and tried to raise a plea of adverse possession before this Court. As per the statement of the plaintiff/sisters of the defendant/brother, there is nothing on record to infer that the sisters were excluded from possession of the joint family property and it was known to them. In absence of any registered document of relinquishment, the inference cannot be drawn that Premlal, the brother, the defendant, was the exclusive owner. The defendant/appellant has tried to raise a plea of co-ownership and the adverse possession except the plea of limitation under Article 110 of the Limitation Act. When such plea of co-ownership and adverse possession is raised together, the same cannot be appreciated as laid down by the Supreme Court in the matter of Ram Nagina Rai vs. Deo Kumar reported in (2019) 13 SCC 324 [LQ/SC/2018/1046] wherein it was held that when there is permissive possession given by the owner and the defendant claims that the same had become adverse, it is required to be specifically pleaded and proved as to when the possession becomes adverse in order for the real owner to lose title 12 years hence from that time. In the entire written statement of the appellants, it is silent about the starting point of adverse possession.

19. While considering such plea, when co-ownership and adverse possession are pleaded together, the issue arises whether it can be given weightage. The Supreme Court in Narasamma Vs. A. Krishnappa (dead) through L.Rs. (2020) 15 SCC 218 [LQ/SC/2020/622] has observed that simultaneously the pleas on title and adverse possession are mutually inconsistent and will remain as contradictory pleas. In this behalf, the Court referred to four earlier decisions, which succinctly set forth the legal position. Paras 32, 33, 34 & 35 are relevant here and quoted below:

"32. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i.e., whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the learned counsel for the respondent herein, which succinctly set forth the legal position.

33. In Karnataka Board of Wakf vs. Union of India (2004) 10 SCC 779 [LQ/SC/2004/547] it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "..... The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced."

34. The aforesaid judgment in turn relied upon the judgment in Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639, [LQ/SC/1995/1305] which observed in para 4 as under: (SCC pp. 640-41):

"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.

35. In order to establish adverse possession, an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial. Please see P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59 [LQ/SC/2007/548] ."

(Emphasis supplied)

20. Considering the evidence that in the instant case merely on the basis of the Revenue documents Ex. P-1 and Ex. D-1 which records the name of Premlal and Janki Bai in the Revenue Records, in absence of any registered document of relinquishment, it cannot be given effect to as the Revenue Records are only relevant for purposes of paying land revenue and nothing to do with the ownership. The same proposition has been held by the Supreme Court in Municipal Corporation, Gwalior vs. Puran Singh alias Puran Chand reported in AIR 2014 SCC 2665.

21. In view of the foregoing discussion, we are of the view that we do not find any merit in this appeal warranting interference in the impugned judgment and decree passed by the learned Court below.

22. In the result, the appeal fails and is hereby dismissed, leaving the parties to bear their own cost(s).

23. A decree be drawn accordingly.